Citizens panel calls for firing of officer

Sunday

An independent citizens panel that reviewed evidence in the fatal shooting of a man by an Austin police officer last May recommended that the officer be fired, the American-Statesman has learned.

The opinion has remained secret since being sent to Police Chief Art Acevedo late last year, and it stands in contrast to public statements that Acevedo has made about the death of Byron Carter Jr.

Acevedo said shortly after the shooting that the actions of officer Nathan Wagner appeared to be within state law and departmental policies, and he added in an interview this month that he has seen no additional information that "would cause me to retract any previous statements."

The revelation of the panel's recommendation in the case — which has received growing public scrutiny in recent weeks — comes as a Travis County grand jury prepares to review evidence this month.

Travis County District Attorney Rosemary Lehmberg said last week that her office did not receive the panel's report in a packet of evidence from the city.

"I asked for it and was told I was not entitled to it," Lehmberg said. She said city officials informed her that the report must remain confidential under state civil service law. A contract between the police union and the city, which permits the panel to have access to otherwise private investigative material, also prohibits its release.

Last week, the American-Statesman confirmed the recommendation of the seven-member panel through three people who have knowledge of the finding. The sources declined to be identified because they are not authorized to speak about the recommendation.

According to police accounts of the incident, Wagner shot Carter, 20, on May 30 east of downtown Austin after a car in which Carter was riding charged toward Wagner and his partner, officer Jeffrey Rodriguez. The car struck Rodriguez, who was treated for a ruptured Achilles tendon but has since returned to regular duty.

Minutes before the shooting, police have said, Carter and his 16-year-old companion were walking along East Seventh Street when Wagner and Rodriguez, who were looking for car burglars, began following them.

Police said they were acting suspiciously but have not explained those suspicions other than to say that Carter and the teen appeared to be "casing out the area."

Carter and his friend then got into a car that raced toward the officers, police have said. Wagner shot Carter four times, including once in the head, and shot the teen driver of the car in the arm. The teen recovered from the wound. A grand jury did not indict the teen on any charge.

Acevedo has not decided whether Wagner will be disciplined for possible policy violations and has said that any action he takes would follow that of the grand jury. According to the rules of the citizens panel, the group's report would probably remain confidential unless Acevedo suspends Wagner for at least a day.

Police Monitor Margo Frasier, who works directly with the panel, declined to comment on the report or its recommendation, as did attorney Adam Loewy, who is representing the Carter family in a federal civil lawsuit against the city and Wagner.

Acevedo said, "The rules of conduct preclude me from discussing the panel's recommendation at this time. However, I question the integrity and personal agenda of anyone who is doing so in violation of the law and due process."

When asked about the citizens panel recommendation, Nelson Linder, president of the Austin chapter of the National Association for the Advancement of Colored People, said he supports the conclusion, although he has not seen the report.

"I think this was a reckless act, and termination is justified," Linder said. "It also sends a message to the community that human life is valuable and that lethal force should only be used when absolutely necessary. In this case, it was unwarranted."

Sgt. Wayne Vincent, president of the Austin police union, said he also was not familiar with the recommendation.

"From what I know, from the limited knowledge I have of this case, termination is inappropriate," Vincent said.

About a dozen experts have provided differing opinions to the American-Statesman about facts of the case. Several said the case involves what they described as an unusual and dangerous police tactic — shooting at a moving car — and that they easily understand community skepticism.

Others said they also can readily conceive of multiple scenarios, including the one police described in Carter's death, in which Wagner rightly used deadly force.

The experts also have differed on whether the officers had ample reason to approach Carter and the teen.

The newspaper in recent weeks has sought copies of parts of the panel's report under the Texas Public Information Act.

The latest request asked for any excerpts that did not originate from confidential information, but city lawyers have sought a ruling from the Texas attorney general's office about whether such records can be released. The state has up to 45 business days to respond.

Created in 2002 under a contract between the police union and the city, the monitor's office is a city agency housed outside the Police Department that reviews police actions that result in serious injury or death, among other responsibilities.

Frasier, a former Travis County sheriff, is the first law enforcement officer to serve in the position. In her first review of a police shooting after taking the job last January, she strongly criticized certain actions of officers and raised concerns about a series of communication failures among 911 operators minutes before an officer wounded an armed man. Acevedo issued a bluntly worded response that disagreed with many of her findings and said the actions of officers and others "saved one or more innocent lives."

The monitor's office also has a citizens review panel that can make disciplinary recommendations based on reviews of deadly force encounters. Final decisions on discipline are made by the police chief.

The panel is made up of unpaid volunteers who meet once a month to review cases but otherwise do not work in law enforcement.

However, members must receive several days of police training, including a presentation on how internal investigations are conducted, and must ride with officers on at least two shifts, according to the agency's website.

Before making recommendations, the panel hears lengthy presentations from internal affairs investigators about the actions of officers and departmental policy.

It has not been uncommon for panelists to recommend harsher punishments than officers have received.

In another recent police shooting, panelists recommended that former officer Leonardo Quintana be suspended for at least 90 days in the May 2009 killing of Nathaniel Sanders II for using poor tactics and committing other policy violations.

Acevedo suspended Quintana for 15 days for not activating his patrol car camera, a punishment that angered some in the community.

Two years earlier, however, panelists recommended that officer Michael Olsen be fired in the shooting death of Kevin Alexander Brown — and Acevedo did so.

The revelation of the panel's finding in Wagner's case is not the first time its recommendation has been disclosed before an officer's disciplinary hearing. In 2005, the American-Statesman reported that the panel had concluded that officer Julie Schroeder should be fired for the fatal shooting of Daniel Rocha.

Then-Police Chief Stan Knee fired her, and union officials, angry about the disclosure, filed a grievance with the city urging that a fact-finder be appointed to investigate how the information became public.

The city hired an independent investigator to try to discover who released the recommendation, but that inquiry was not successful.

tplohetski@statesman.com; 445-3605

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